Resuming an inquest after a criminal conviction: Art 2, informal patients and the investigatory obligation

Inquests play an essential role in ensuring public accountability when our hard pressed public services don't always manage to get things right. That inquests allow for the full involvement of the family when publicly exploring the facts and coming to the understanding of what has happened is one of their most important features. The independence of the Coroner (or jury) when reviewing the circumstances of a death is crucial; as is the Coroner’s power to then notify any concerns to those who can take steps to make things safer for us all in the future.

Against that background it should, perhaps, not even need the added impetus of Art 2 ECHR to understand why some deaths are crying out for a publicly held independent investigation. Whilst the coronial jurisprudence around Art 2 ECHR and the investigative obligations that flow from it can be complex, it is hard for the outside observer to discern why the Senior Coroner in this present case was not even persuaded that Art 2 ECHR was engaged, let alone that an inquest was then required to satisfy the State’s investigatory obligations.

The facts

The bare facts are that a woman, who all accepted was mentally unwell, had absconded from a psychiatric hospital by jumping out of a window just one day after the decision had been made to change her status to that of an informal patient (and so not continue with her detention under the Mental Health Act 1983). The woman had also absconded the previous month, and at that time the staff had told police the woman was “very unwell” and “at risk of causing violence”. On this second occasion the police were again asked for assistance to return her to hospital and were told that the staff believed the patient “might do something” and “may be holding [her mother] hostage”. Yet she was nevertheless left in the community un-assessed for a further five days. At some point during that period she killed her mother.

Engaging Art 2

Even a cursory reading of Rabone and Sargantson[1] would suggest it was at very least arguable that the state’s Art 2 obligations were engaged here, given the involvement of these two public bodies - and particularly as an internal NHS inquiry had already pointed to a number of shortcomings in the patient’s care and risk assessment. Indeed the Chief Coroner, who gave the decision of the High Court, seems to have felt it was so abundantly clear that Art 2 was engaged that he didn't even bother wasting any space in his judgment explaining why[2]

The Senior Coroner, however, did not accept that Art 2 was engaged and further, even if it was, did not agree that resuming the inquest was required in the context of a guilty plea and the public bodies’ having already conducted their own investigations.

As the Chief Coroner has now made abundantly plain: where there has not already been an independent investigation of a death that has allowed for the proper involvement of the family and with a sufficient element of public scrutiny, then the inquest must be the vehicle to achieve this.

The earlier investigations

Following the killing an inquest was opened and immediately (and appropriately) suspended pending the criminal investigation. As the patient pleaded guilty to manslaughter of her mother on the grounds of diminished responsibility there was no criminal trial that might examine any of the detail of how the death came about.

Two other investigations had taken place into the role of the public authorities: an internal investigation by the NHS Trust and a "Domestic Homicide Review" under s.9 Domestic Violence, Crime and Victims Act 2004. Both of these investigations were conducted in private. The first investigation was conducted wholly by NHS Trust staff and did not involve the family. The second investigation had an independent social worker as its chair, but panel members included employees of the NHS Trust and the police force involved in the death. This investigation consulted the family and took their views into account, but the family had no role in the conduct of the review and the documents and information that informed it were said to be ‘confidential’.

When the deceased’s son requested that the inquest be resumed the Senior Coroner declined. He concluded that first, the circumstances did not engage Art 2 because the woman was not a detained patient at the time of the killing; second, even if Art 2 was engaged he considered that the investigative obligation had already been satisfied by the combination of what he referred to as the “trial” and the two investigation reports that had been completed by other public bodies.

The Decision

The Administrative Court (Mr Justice Charles and HHJ Lucraft, the Chief Coroner) did not agree with the Senior Coroner on either point.

First, he had applied the incorrect test in deciding whether or not to resume. The Coroner had referred to the test for resumption as being "whether the facts of the death [had] been adequately aired in public". Yet the test under the Coroners and Justice Act 2009 Sch.1 Pt 2 para.8, was whether "the senior coroner thinks that there is sufficient reason for resuming" a suspended investigation. Whilst the test framed in the Act was highly discretionary there was no need to find any exceptional circumstances before resuming an inquest after a criminal conviction

Second, the real question here was whether the Coroner could reasonably find that the investigations which had taken place were enough to discharge the Art 2 duty. The Coroner asserted that “the identity of the deceased and how, when and where the death occurred…have been adequately aired at the Crown Court Trial”. But the combination of a guilty plea and two other investigations conducted in private did not, in the view of the Admin Court, satisfy the requirements of Art 2 ECHR laid down by the House of Lords in Amin.[3] These are that a death engaging Art 2 must be publicly investigated before an independent judicial tribunal, with opportunity for relatives of the deceased to participate.

The Coroner should have decided to resume the inquest and his decision not to do so was unlawful and in breach of the obligations under Art.2 and the common law.

The future

An important point for Coroners to note from this case is that the Chief Coroner endorsed the earlier dicta of Simon Brown LJ from Dallaglio that the section envisages rather than discourages resumption of an inquest after a criminal conviction. The default option should not be for a Coroner to try to find ways to avoid what may be a lengthy and complex inquest, but to ensure that deaths in such concerning circumstances are investigated independently, publicly, openly and fully with the family at the heart of the inquiry.

[1]Rabone v Pennine Care NHS Trust [2012] UKSC 2 [2012] Inquest LR 1: where the Supreme Court held that a positive Art 2 duty to safeguard life would arise in respect of an informal psychiatric patient where there was a real and immediate risk to life. Sargantson v CC Humberside Police [2013] EWCA Civ 1252 [2013] Inquest LR 252: where the police's delay in attending an incident to avert a risk of further violence was held to be a substantive breach of Art 2 obligations.